Cape Verde Votes to become the 22nd State to Join ARIPO

On 7 January 2022, the Parliament of Cape Verde approved accession to the Lusaka Agreement.

The Cape Verde Parliament also voted in favour of acceding to the  Banjul and the Harare Protocols on the same day. On 27 January 2022, it further approved  accession to the Swakopmund Protocol.

Cape Verde has indicated, that the instruments of accession will be deposited with the ARIPO Director General at a date, which is yet to be determined.

The Lusaka Agreement established the African Regional Industrial Property Organisation (ARIPO) in 1976. The Administrative Council adopted four treaties for different Intellectual Property rights over the years – namely : Banjul, Harare, Arusha and Swakopmund Protocols.

Cape Verde is now the 22^nd state to accede to the Lusaka Agreement, joining Botswana, Eswatini, Gambia, Ghana, Kenya, Kingdom of Lesotho, Liberia, Malawi, Mauritius, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Seychelles, Sierra Leone, Somalia, Sudan, Uganda, United Republic of Tanzania, Zambia and Zimbabwe.

The Banjul Protocol, which governs the Trade Mark system,  currently has the following countries which have acceded:-  Botswana, Gambia, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Tanzania, Uganda, Zimbabwe, Liberia and Sao Tome.  Cape Verde, on depositing its instruments of accession, will be the 13^th country to accede to the Protocol.

The Harare Protocol regulates the patents and design systems and currently has 19 member states – Botswana, The Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, São Tomé & Príncipe, Seychelles, Sierra Leone, Sudan, Eswatini, Tanzania , Uganda, Zambia and Zimbabwe.

The Swakopmund Protocol, which mandates the protection of Traditional Knowledge and Expressions of Folklore, currently has 8 contracting states, namely: Botswana, Malawi, Namibia, Rwanda, The Gambia, Liberia, Zambia and Zimbabwe.

Following the deposit by Cape Verde, applicants will be able to designate Cape Verde as one of the designated countries in ARIPO applications, covering either patents, industrial designs, utility models, trade marks and the protection of traditional knowledge.

That said, Cape Verde’s current Industrial Property Code legislation does not provide for the registration of Intellectual Property in terms of the ARIPO Protocols.

Until the signatories of the  Protocols have incorporated the provisions of the Protocols into their national laws, the enforceability of the legislation remains a moot point.

It is our view that the ARIPO-regional system is not yet an effective or recommended route to take where ARIPO member countries (such as Cape Verde) have not amended their national laws . Furthermore, in countries where ARIPO enjoys full recognition, force and effect in terms of national laws, the examination timelines remain a challenge.

Accordingly, a strategic overview of the applicant party’s intellectual property is required, with the default position being protection on a national basis.

We might add that the Cape Verde Registry has administrative challenges and remains to be seen how it will handle the implementation of the ARIPO system, should it proceed to the instruments of accession.

Thembani Nkabinde

Senior Associate | Trade Mark Attorney

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Simon Brown

Partner | Trade Mark Attorney

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